to a trial by the jury of all the issues in the case, and that the court had no right to make findings of fact, as it was the province of the jury to pass upon all the issues of fact and either present special findings or a general verdict (citing section 625 of the Code of Civil Procedure); and that the court was powerless to do more than set the verdict aside. This was not such a case as would authorize the clerk to enter judgment on the verdict under section 664; there were questions of purely equitable cognizance which the court alone could determine, and if the jury had been directed to find specifically on questions of this character, their finding would not have been conclusive on the court. The section referred to is directory, and it was not necessary to the validity of the judgment that it should be entered within twentyfour hours. If the judgment had been such a one as the clerk could enter, defendant might have moved the court for an order directing him to do so. (First National Bank v: Wolff, 79 Cal. 69.) Appellant errs in assuming that he had a right to try all the issues before a jury, and that the court had no power to make findings. He relies on Donahue v. Meister, 88 Cal. 121,1 which was an action in form to quiet title. That case is instructive as defining the right to a jury under section 738 of the Code of Civil Procedure, but the court was careful to limit the decision to a case "where the answer shows that the defendant was rightfully in possession, and was ousted by plaintiff, and wrongfully kept out of possession," and it was said, "upon the trial of those issues the defendant is entitled to a jury." In Crocker v. Carpenter, 98 Cal. 418, the action was to quiet title, and Donahue v. Meister, 88 Cal. 121,1 was distinguished and explained and it was shown to apply to cases where the issues were of a purely legal character. It was held that defendants were not entitled to a jury for the trial of the equitable issues presented. In the case at bar there was a jury, and the verdict determined all the legal issues in favor of respondent.

The principal equitable issue was whether defendant should be enjoined from interfering with plaintiff's use, which it is alleged and found would, if continued, be to his irreparable injury. We cannot see that the case differs materially from McLaughlin v. Del Re, 64 Cal. 472, and Churchill v. Baumann, 104 Cal. 369. In the latter of these

1 22 Am. St. Rep. 283.

cases the chief justice said, in a dissenting opinion, that on the question of damages plaintiff was entitled to a jury. Even if this be conceded, defendant cannot complain, because he had a jury, and it assessed the damages, and the court adopted the verdict. Besides, it appears that defendant is not injured by the findings of the court, since the verdict was general, and it is not claimed that any findings of fact were not supported by the evidence, nor is it contended that any finding is not included in the general verdict. Conceding the findings to be unnecessary, they were harmless. But they were clearly proper for the disposition of the equitable branch of the case.

The judgment and order should be affirmed.

Gray, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are affirmed.

McFarland, J., Temple, J., Henshaw, J.

[8. F. No. 2617. Department Two.-February 25, 1902.] GOODYEAR RUBBER COMPANY, Respondent, v. THE CITY OF EUREKA, Appellant.

MUNICIPAL CORPORATIONS-APPROVAL OF CONTRACT-VOTES OF MEMBERS OF COUNCIL.-Under a charter of a city providing that a journal of proceedings of the city council shall be kept by the city clerk, and that the ayes and noes shall be taken and entered therein on the final action upon the making of contracts, a record of the approval of a contract of purchase made by the mayor, showing who were present, and that all present voted in favor of a motion to approve the contract, and no one against it, shows a sufficient compliance with the object of the charter.

ID.-CONSTRUCTION OF CHARTER-ESSENTIALS OF CONTRACT-AUTHENTICATION-COUNTERSIGNING, NUMBERING, AND REGISTERING.-A provision of the city charter that every contract must be countersigned by the finance committee, numbered, and registered in a book kept for that purpose, must be construed with another section of the charter which states what essentials are necessary to make a contract binding, and does not enumerate such countersigning, numbering, and

registering, and the provision therefor being intended merely for further authentication of the contract, the contract is not rendered invalid by its absence.

ID.-APPROVAL BY CITY ATTORNEY-ADMISSION OF PLEADINGS-FINDINGS. -Where the approval of the contract by the city attorney, as required by the charter, was admitted by the pleadings, a finding thereupon was not necessary.

ID.-CERTAINTY OF CONTRACT.-A contract to sell to the city "1,000 feet of Paragon hose at 90 cents a foot," shows no uncertainty in its terms.

ID.-LOSS OF WRITTEN OFFER-ORAL EVIDENCE OF CONTENTS.-Where the written offer to sell was before the council at the time of the approval of the contract, of which it was a part, and was shown to be in possession of the clerk, but was subsequently lost, it was proper to prove its contents by oral evidence.

ID.-ACCEPTANCE OF HOSE BY CHIEF OF FIRE DEPARTMENT-DELEGATION OF POWER.-A provision in the contract for the purchase of the hose, that it shall be satisfactory to the chief of the fire department, and accepted by him before the city becomes liable thereunder, does not show an improper delegation of power to such chief, but is merely one of the conditions safeguarding the contract.

APPEAL from a judgment of the Superior Court of Humboldt County and from an order denying a new trial. G. W. Hunter, Judge.

The facts are stated in the opinion.

E. P. Campbell, for Appellant.

A. J. Monroe, for Respondent.

GRAY, C.-This action is brought to recover nine hundred dollars, the purchase price of a thousand feet of rubber hose, alleged to have been sold and delivered by plaintiff and accepted by defendant. The plaintiff having obtained judgment as demanded, the defendant appeals therefrom and from an order denying it a new trial, and contends that the alleged contract of purchase and sale was not properly entered into, and was not binding upon the municipality defendant for several reasons, all of which we will dispose of in the same order as presented by appellant.

1. The charter of defendant provided that a journal of the proceedings of the city council shall be kept by the city lerk, and that the ayes and noes shall be taken and entered

therein in the final action upon the making of contracts. The final action on this contract was taken by the council at a meeting the journal record of which was introduced in evidence and reads as follows:

"Council Chambers,

"City of Eureka, Cal.,

"Wednesday, July 5th, 1899.

"Regular adjourned meeting of the council, held on above date. Present: Pres. of Council Buhne, presiding, and Councilmen Gibbard, Connick, and Crane. Absent: Mayor Evans and Councilman Poland.

"Pres. of Council Buhne stated that the meeting was for approving the contract for 1,000 feet of Paragon hose.

"Councilman Gibbard move that the contract entered into by the Mayor of the city and W. F. Long for the Goodyear Rubber Co. for 1,000 feet of Paragon hose be approved.

"Seconded by Councilman Connick and carried.

"All present voting in favor thereof and no one against the same.

"There being no further business, the council adjourned until the next regular meeting of the council."

This entry clearly shows what members of the council were present and what members were absent during the entire meeting, and also just what members voted aye and that there were no negative votes. The object of the charter was to have a record kept of how each member present voted, and this object was thoroughly accomplished in the above quoted journal entry; and the entry fully supports the finding that the "yeas and nays were taken, and the name of each member voting upon the question was entered upon the journal"; and appellant's contention to the contrary falls to the ground. The law respects form less than substance. (Civ. Code, sec. 3528.) In the case of Los Angeles Gas Co. v. Toberman, 61 Cal. 199, it appeared that the names of those who voted for and against the final adoption of the contract were not entered upon the journal, and for this reason that case has no application here. Barr v. Auburn, 89 Ill. 361, and Solomon v. Hughes, 24 Kan. 211, fully support the position here taken.

2. It is found that the contract was not countersigned by the finance committee, and this is urged as fatal to the va

lidity of the contract. Section 42 of the Eureka charter (Stats. 1895, p. 364) is as follows: "All contracts must be in writing, executed in the name of the city, and by an officer authorized to make the same. The form and legality of all contracts shall be submitted to and passed upon by the city attorney. Every contract must be countersigned by the finance committee, numbered, and registered in a book kept for that purpose." This section should be read in connection with section 167 (Stats. 1895, p. 398), which latter section reads as follows: "The city of Eureka shall not be and is not bound by any contract, or in any way liable thereon, unless the same is made in writing by order of the council, and the draft thereon approved by the city attorney and the council, and the same ordered to be and be signed by the mayor, or some other person authorized thereto in behalf of the city; but the council, by an ordinance, may authorize any officer, committee, or agent of the city to bind the city without a contract in writing for the payment of any sum of money not exceeding three hundred dollars. All bonds of any contractors with the city shall be approved by the council."

This section 167 undertakes to set forth the essentials to a contract binding the city, and countersigning by the finance committee, as well as numbering and registering, is not enumerated among those essentials. We take it, therefore, that the countersigning is not intended as a part of the execution of the contract, but, like the numbering and registering mentioned in the same sentence with it, is merely for the purpose of more thorough authentication, and that the contract is not invalid by reason of its absence. If the legislature had intended that the absence of this countersigning should leave the contract without binding force upon the city, it would have so declared in said section 167.

The contract was made in writing and signed by the mayor, after he had been duly authorized thereto by the action of the council, and thereafter it was duly approved by the council, with the written contract so signed before it. This was, in effect, an approval of the draft of the contract. These matters are all fully set forth in the findings, and the evidence clearly supports such findings.

There seems to be no finding that the contract or a draft thereof was approved by the city attorney; but it is alleged